THE legal experts have said the Electoral Commission
of Namibia's decision to exclude travellers from voting is unconstitutional.
ECN announced last week that if a registered voter
travels abroad, they will not be allowed to vote on 14 or 28 November.
The chairperson of the Law Reform and Development
Commission of Namibia, Sacky Shanghala yesterday said he wrote to the
presidential affairs minister and Attorney General Albert Kawana and the Office
of the Ombudsman asking them to protect the right to vote which is a
fundamental freedom and right in the Constitution.
Shanghala said the Attorney General has the
responsibility to ensure that citizens' rights are upheld.
“Although the ECN is being reasonable in basing its
decision on a 'one man, one vote' principle, the outcome of the application of
the decision should not result in disenfranchisement of voters whose rights are
superior to the decision,” Shanghala said.
He also argued that students studying abroad may not
be able to afford the money to travel back to the country for elections.
Some civil society groups also criticised the
decision, saying it was unconstitutional.
The Legal Assistant Centre's Dianne Hubbard called
the move 'discriminatory', saying: “It worries me that only some people will be
allowed to vote. There are many people who travel abroad for work or study
purposes and they should be given an equal right to cast their vote.”
According to the new Electoral Act, if a voter is,
by reason of absence, unable to vote on any polling day at a polling station
within the constituency where such a voter is registered, the presiding officer
of any other polling station, whether inside or outside Namibia, must, at the
request of the voter, permit the voter to record his or her vote by way of a
tendered vote.
Human rights lawyer Norman Tjombe said the decision
was unlawful and “in violation of the Electoral Act and certainly
unconstitutional as it will unfairly violate the voter's right to vote”.
“Whatever logistical and security reasons for such
restriction, it can be attended by a proper administrative arrangement that
should have been in place at the ECN, which they ought to have planned well in
advance for considering the clear and unambiguous terms of the law,” Tjombe
said.
ECN director of operations Theo Mujoro said the ECNs
decision was based on the fact that they want to avoid a situation where people
might vote twice.
He said the decision was based on a specific section
in the new Electoral Act, without elaborating, while Kawana said “tendered
votes no longer exist”.
Kawana also said the decision could have been based
on “technological limitations” that have to do with the verification of voters,
which if ignored, might lead to another court challenge similar to that of the
2009 elections.
“I believe the ECN's decision is genuine and based
on verification challenges. If I registered to vote in Moscow and I come and
vote in Windhoek, it might present some major verification problems as there is
always the risk that I might have voted twice,” he said.
Kawana said the ECN seemed to be extra careful to
ensure that the process is transparent and that opposition parties do not
challenge the electoral outcome due to irregularities.
The ECN has registered over 3 668 voters abroad.
The Namibian
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